iPhonegate: Q.&A. With Mark D. Rasch, Computer Security Expert

A conversation with Mark D. Rasch, the former head of the United States Department of Justice computer crime unit, discussing the legal technicalities of the case of the missing iPhone 4G.

NICK BILTON

The iPhone-lost-in-a-bar story raises all sorts of legal questions. To explore them further, I spoke with Mark D. Rasch who is the former head of the United States Department of Justice computer crime unit, and helped develop the department's guidelines for computer crimes related to investigations, forensics and evidence gathering. Mr. Rasch is currently a principal with Secure IT Experts, a consulting company that specializes in computer security. The Q.&A. below is an edited version of our discussion.Q. Is this case about a stolen phone or about the intellectual property inside the phone?A.One of the problems that people keep focusing on is the fact that the phone was stolen and let's be frank here, if this had been the third-generation iPhone as opposed to a fourth-generation iPhone that had been found in the bar and given or even sold to Gizmodo and then Gizmodo returned it back to Apple, no one would have cared. What was important in this case, the thing that was either stolen or misappropriated was not the device itself, it's the intellectual property in the device.

Q. And what about the theft component of the case?There's the issue as to what extent these theft laws apply to theft of intellectual property as opposed to physical property. And to the application of trade secret law to journalists. If a journalist learns of a trade secret from a source and publishes that, is a journalist and the publication liable for prosecution for theft.

Q. Can't Gizmodo say they didn't know the phone belonged to Apple?There is the entire issue of whether or not this was a real phone. You can go to China and buy hundreds of computers or phones with Apple logos on them.

Q. So can Gizmodo use that as a defense?Gizmodo has lots of defenses. The phone wasn't stolen in the traditional sense. If there was property misappropriated, Apple didn't claim it at first. And the big one, when Apple asked for it, Gizmodo gave it back to them. Even putting aside the journalistic issues, Gizmodo has lots of defenses.

Q. Is Gizmodo wrong for publishing images of the phone?The job of a journalist is to find information that companies and people don't want published.

Q. What's the next step?What will happen is they'll have a hearing before a judge and the judge will decide whether or not the warrant and the seizure the valid based upon the shield law. Or, they will work out a compromise with Gizmodo.

Q. Will Gizmodo try to get its computers back?Jason Chen or Gizmodo will file a motion to suppress or motion for return of illegally seized property. They can then use the shield law, both the federal shield law and the California shield law as well as the California equivalent of the First Amendment and the U.S. Constitution for grounds to return the property. They can claim that the search was illegal. The court could rule that a middle ground can look through the computers.

Q. You mean a third person could look through the computers?They are called a special master, and this is someone who can only examine certain records or documents. You have to understand that one of the reasons for the shield law is not just to shield journalists from giving the name of their sources but to protect all the journalistic activity that might be contained in the news office. With Chen, the police have potentially seized the entire news office. That's why we have this shield law.

Q. What do you think the judge is going to say?Based on California law, it's a coin toss. It's going to depend on how sympathetic the court's going to be to the shield law.

Q. Could this case end up in the Supreme Court?Yes. First of all, the Supreme Court this year, this term, has been hearing a lot of First Amendment cases. Second, The Supreme Court has not touched on journalist shield laws in 20 years, 25 years. There are a number of issues that would be right for the Supreme Court to decide, one of which is the extent to which bloggers and even Twitterers are protected by the First Amendment. The third factor is really the scope of protection under journalist shield laws which have never really been decided by the Supreme Court because it's one of statutory interpretation as opposed to constitutional law.

Q. How solid is the defense of the individual who found the phone?A prosecution of the guy who found the phone is going to be really tough because he apparently did make efforts to return the phone. Theft is failing to try to return it. It's going to be difficult to decide how much effort he made and whether that was sufficient. Right now, he's both more guilty and more innocent.

Q. And if someone is found guilty, what is the likely outcome?I don't know what the sentence could be, but it could be significant as they're going to say what he stole wasn't something worth $150 or $400, it wasn't even worth $5,000, but they're going to say it's worth the entire development cost of the iPhone prototype, which could cost tens of millions of dollars.

Q. Could there be a legal resolution to this story where the parties involved can walk away satisfied?It's going to be difficult. The train has left the station. You can't put the trade secret back in the bottle. Though I am sure people involved would like to.

Q. Have you ever worked on a similar case?There was a case I worked on many years ago in which a Soviet pilot defected to Tokyo and under the law he was granted asylum. The Soviets wanted their Mig25 plane back, but we had never seen a Mig25 before. So we and the Japanese had to return it because it was the property of the Soviet Union. But before it was sent back, it was taken apart, every piece measured, every piece replicated and put back together and then returned. Did we steal it? No. We returned it.

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